2001 (6) TMI 150 - AT - Customs

Tribunal orders release of gold to appellant, penalty set aside due to lack of evidence.

NIRMALA MITRA Versus COMMISSIONER OF CUSTOMS, PATNA

NIRMALA MITRA Versus COMMISSIONER OF CUSTOMS, PATNA - 2001 (138) E.L.T. 1037 (Tri. - Kolkata) Issues Involved1. Seizure of gold by the Police and its transfer to Customs.2. Applicability of Section 178A of the Sea Customs Act, 1878, and Section 123 of the Customs Act, 1962.3. Onus of proving whether the gold was smuggled.4. Retrospective application of legal provisions.5. Evidence of smuggled nature of the gold.6. Confiscation and penalty imposed by the Commissioner of Customs.Detailed Analysis1. Seizure of Gold by the Police and its Transfer to Customs:The gold in question was initially seized by the Police in 1950 from Late Shri Santo Kumar Mitra due to defalcation of government money. The gold was later ordered to be handed over to the Customs authorities by the Judicial Commissioner. The appellant argued that the gold was seized by the Police and not by Customs, meaning there was no fresh seizure by Customs under the Customs Act.2. Applicability of Section 178A of the Sea Customs Act, 1878, and Section 123 of the Customs Act, 1962:The appellant contended that since the gold was seized by the Police and transferred to Customs, there was no seizure under the Customs Act, thus Sections 178A and 123 were not applicable. The Tribunal agreed, citing the Supreme Court's decision in Gian Chand & Others v. State of Punjab, which held that goods delivered to Customs by the Police do not constitute a fresh seizure under the Customs Act.3. Onus of Proving Whether the Gold was Smuggled:The appellant argued that the burden of proving the gold was smuggled lay with the Department, not the appellant. The Tribunal concurred, noting that the possession of the gold by Customs was a result of a court order, not a seizure from the appellant. Therefore, the onus was on the Department to prove the gold was smuggled.4. Retrospective Application of Legal Provisions:The Tribunal examined whether Sections 178A and 123 could be applied retrospectively. It referenced the Supreme Court's decision in Ambalal v. Union of India, which held that these provisions were prospective and not applicable to seizures made before their enactment. Since the gold was seized in 1950 and the provisions were introduced later, they could not be applied retrospectively.5. Evidence of Smuggled Nature of the Gold:The Tribunal found that the Commissioner of Customs had not provided positive evidence to prove the gold was smuggled. The appellant presented evidence that the gold was acquired legally through brokers from the Reserve Bank of India. The Tribunal noted that the Department failed to produce any evidence to counter this claim.6. Confiscation and Penalty Imposed by the Commissioner of Customs:The Commissioner had ordered the confiscation of the gold and imposed a penalty on the appellant. The Tribunal found that the confiscation was unjustified as the Department had not proven the gold was smuggled. Consequently, the Tribunal directed the release of the gold to the appellant and set aside the penalty.ConclusionThe appeal was allowed, and the gold was ordered to be released to the appellant, Smt. Nirmala Mitra. The personal penalty imposed was also set aside, providing consequential relief to the appellant.